Court of Appeal dismisses appeal against 35-year consecutive sentence for serious sexual and harassment offences.

THE COURT OF APPEAL Neutral Citation No: [2025] IECA 303 Court of Appeal Record No. 151/21 McCarthy J Burns J O’Moore J

BETWEEN THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT AND

MICHAEL MURRAY APPELLANT

JUDGMENT of the Court delivered on the 15th day of December 2025 by Mr Justice Patrick McCarthy

1. This is an appeal against the severity of a sentence imposed in the Circuit Criminal Court on Bill No: LSDP0054/2016. Michael Murray, the appellant herein, was indicted on six charges, namely: two counts of threatening to kill or cause serious harm, contrary to section

5 of the Non-Fatal Offences Against the Person Act 1997 (Counts No. 1 and 3); three counts of harassment, contrary to section 10 of the Non-Fatal Offences Against the Person Act 1997 (Counts No. 2, 4 and 5); and one count of unauthorised possession of a mobile telecommunications device by a prisoner, contrary to section 36 of the Prisons Act 2007 (Count No. 6). The appellant entered a guilty plea in respect of Count No. 6 on the 14th of June 2021. Following a contested trial, the appellant was found guilty by unanimous verdict of the balance of the counts on the indictment on the 5th of July 2021. The appellant received the following sentences in respect of each count:—

Count No. 1: 9 years’ imprisonment;

Count No. 2: 4 years’ imprisonment;

Count No. 3: 7 years’ imprisonment;

Count No. 4: 4 years’ imprisonment;

Count No. 5: 7 years’ imprisonment; and Count No. 6: 5 years’ imprisonment.

The sentence imposed on Count No. 1 was to commence on the lawful expiration of a sentence of 19 years’ imprisonment imposed by this Court on separate charges, which latter commenced on the 15th of February 2010. The sentence imposed on Count No. 5 was made consecutive to the sentence imposed on Count No. 1, and the sentences imposed on the remaining Counts are to run concurrently to the sentence imposed on Count No. 1— resulting in an aggregate term of 16 years’ imprisonment on the charges before us, or 35 years’ imprisonment from the 15th of February 2010.

Background and facts of the matter

2. The appellant was tried for rape and other offences immediately associated therewith in the Central Criminal Court and was convicted thereof on the 29th of July 2013 (the ‘2013 trial’).

The injured parties of the offending under consideration in this appeal were all connected with the 2013 trial:—

Mr Dominic McGinn SC

Mr McGinn SC acted as senior counsel for the prosecution in the matter and is the complainant in respect of Count No. 1 and Count No. 2 on the indictment.

Mr Tony McGillicuddy BL

Mr McGillicuddy BL acted as junior counsel for the prosecution in the matter and is the complainant in respect of Count No. 3 on the indictment.

Ms Tanya Mueller

Ms Mueller was the appellant’s solicitor in the matter and is the complainant in respect of Count No. 4 on the indictment.

MG

MG was the victim of the appellant’s offending giving rise to the earlier convictions in 2013 and is the victim in respect of Count No. 5 on the indictment.

3. It is necessary to elaborate upon the earlier offences and we do so by reference to our judgment in The People (DPP) v. Michael Murray [2017] IECA 68—an appeal against his convictions—so that the context of the offending in this case is clear. Birmingham J (as he then was) gave the judgment of the Court and summarised the facts of the offending in the following way:—

“5. The trial was concerned with events that occurred on the 12th February/early hours of the morning of the 13th February, 2010. The prosecution case was the complainant, a young Chinese national, was walking home from work in the Smithfield area of Dublin accompanied by her four year old son at approximately

16.10 when she was lured into an apartment by the appellant on the false basis that there was a lady inside who was sick and needed help. The prosecution case was that thereafter the appellant locked them both into the apartment and subjected the complainant to an escalating and relentless ordeal of rape, attempted rape, sexual degradation and violence, drugging her, binding and gagging her and threatening to kill both her and her young son. This episode was said to have lasted until the appellant left the apartment shortly before 5.30 am, leaving her tied up in the bath.

The appellant had left the apartment at an earlier stage when he took the complainant’s son away by car and deposited him on the street sometime around 22.00/22.30 hours.

6. The trial was a fully contested one and Mr. Murray advanced a defence that the complainant far from being unknown to him prior to the incident as the prosecution contended was in fact a prostitute or escort who had been working for him in an agency that he ran [these allegations were lies]. This proposition is utterly rejected by the complainant.”

4. The present offending occurred between November 2014 and February 2015.

5. On the 16th of November 2014 Mr McGinn received a phone call from a private number at around midnight and, when he answered, a male voice said, “Bang, bang”, and hung up.

He received a further call shortly after midnight, which his wife answered. During the second call, the caller at the other end of the line remained silent. Mr McGinn notified an Garda Síochána of these phone calls, and a Detective Garda Treacy stated in evidence that he was notified that Garda Control had received a call stating that Mr McGinn would be shot dead.

6. During the days and weeks that followed, Mr McGinn received a large number of calls from private numbers. He generally did not answer these calls, and no messages were left by those callers. He continued to receive such calls into January 2015. Aside from these calls from private numbers, Mr McGinn also began receiving text messages and voicemails from numbers which he did not recognise. One such message, received on the 13th of December 2013, stated: “Hi, baby, do you want to meet later?” Mr McGinn received similar messages into January 2015, which asked him (sometimes referring to him by name) whether he was available to meet. Mr McGinn answered some calls from these unrecognised numbers during which the callers on the other end of the line seemed to be hesitant. Mr McGinn conducted a search of his name and phone number on Google, whereupon he discovered that his name and telephone number had been listed in an advertisement for sexual services on a certain sex website. The evidence was that this contact had a devastating effect on Mr McGinn.

7. On the 9th of February 2015 Mr McGillicuddy received a call from a private number at around 10:30 p.m. When he answered it, the caller enquired whether he was speaking to “Tony”. When Mr McGillicuddy asked who he was speaking to, the caller stated, “[y]ou prosecuted a man that we know, you and Dominic McGinn, and I'm telling you we're going to kill you”. Mr McGillicuddy immediately terminated the call and subsequently reported the incident to an Garda Síochána. He also contacted Mr McGinn regarding the call, and the evidence was that he treated the matter very seriously at the time.

8. In January 2015 Ms. Mueller received a text message referring to an advertisement which confused her. She began to receive further text messages which raised her suspicions that an untoward event had occurred. Ms Mueller searched for her name and phone number on Google and discovered an advertisement for sexual services with her details on the same website as that referred to in the evidence relating to Mr McGinn above. The advertisement referred to “Asian Escorts @ Tanya” and advertised the services of an Asian escort using Ms Mueller’s phone number. The evidence was that Ms Mueller was distressed and worried by the content of these text messages, and that the use of this particular number impacted her professional duties.

9. Similarly, MG received a large number of phone calls at the beginning of 2015, usually late at night when she was alone at home. It was subsequently discovered that these calls arose as a result of an advertisement for sexual services giving MG’s phone number on the same sex website. She described being frightened by these phone calls. As later noted by the sentencing judge in her judgment, the offending behaviour against MG is especially serious since it amounted to her further victimisation. When the appellant was convicted of the original offences, she might have had some hope that her ordeal at his hands was over, but it was not. Obviously, she was further re-victimised by the trial on the present indictment but that cannot be taken into account since the appellant was exercising his right to contest the matter—this rule is something which way well be re-visited on another occasion, but the judge rightly did not take it into account here.

10. A Detective Garda Treacy gave evidence that the investigation arising from those events led to the appellant. In early February 2015 the appellant was in possession of a mobile phone which was recovered and subsequently examined by gardaí and a civilian analyst.

These examinations revealed that it had been in contact with the phone numbers of each of the complainants and that the appellant’s phone was used to set up the advertisements containing the information referable to Mr McGinn, Ms Mueller and MG on that website.

11. Following the examination of his mobile phone, gardaí arrested and detained the appellant.

We think we can fairly summarise the appellant’s approach to the gardai as being one of revelling in the harm which he had done. During interviews conducted during his detention, the appellant accepted that he had been in possession of the mobile phone and indicated that he had obtained it from another person during a hospital visit in 2014 and subsequently registered it through his wife. He further admitted to making threats to Mr McGinn and Mr McGillicuddy and to contacting the former multiple times. He told gardaí that he did threaten to kill Mr McGinn and wanted to kill him. He also admitted to contacting Ms Mueller and to setting up advertisements on the sex website.

12. Detective Garda Treacy told the Court that the appellant had 34 previous convictions. He summarised the previous convictions as follows:—

“Judge, starting with the latest, the 3/11/2017, the Supreme Court, Judge, that is the rape contrary to section 3 of the Criminal Law (Rape) (Amendment) Act where the sentence was 19 years, Judge. The sentence date from the 15/2/2010, Judge.

Also, in that, Judge, is a rape contrary to section 4 of the Criminal (Rape)

(Amendment) Act 1990. Also, another rape contrary to section 4 of the Criminal (Rape) (Amendment) Act 1990 on that date as well, Judge, same sentence. Again, on that date, Judge, sexual assault on a male/female, it was a female, Judge, contrary to section 2 of the Criminal Law (Rape) (Amendment) Act of 1990, Judge.

That was taken into consideration, the Supreme Court is listed as 3/11/2017 year.

Judge, also on the same date attempted rape contrary to common law, Judge, sentenced to six years imprisonment from the 15/2/2010. Also on the same date, Judge, is a Theft Act, section 4 theft, sentenced to six years again from the 15/2/2010. On the same date also, Judge, is a Theft Act, another Theft Act, section

4 and another sentence of six years from the 15/2/2010. Again, another section 4 theft, Judge, on the same date. On the same date again is a sexual assault on a female contrary to section 2 of the Criminal Law (Rape) (Amendment) Act and that was taken into consideration in the Supreme Court. Also, Judge, on that same date is the abduction of a child by a person other than the parent contrary to section 17 of the Non Fatal Offences Against the Person Act, Judge. It was a sentence of six years from the 15/2/2010. Again, on the same date, Judge, threatening to kill or cause serious harm contrary to section 5 of the Non Fatal Offences Against the Person Act, Judge, and it was a sentence of eight years on that one, Judge, from the 15/2/2010. Same date again, another sexual assault on a female contrary to section

2 of the Criminal Law (Rape) (Amendment) Act and it was taken into consideration in the Supreme Court on the 3/11/2017. I think I'm going over the same ones, Judge, again. It's false imprisonment, Judge, contrary to section 15 of the Non Fatal Offences Against the Person Act and a sentence of eight years, Judge. Going back before that and separate to that case it's Mullingar Circuit Court, Judge, in 2009, 17th of February 2009, is a Theft Act and it's burglary contrary to section 12, Judge, and there was a sentence of three years from the 20/7/2010. Going back again before that, Judge, the date of the offence is the 3/4/2009, another Theft Act, section 4, and a sentence of two years, Judge, at Cork City Circuit Court on the 18/2/2010. Previous to that, Judge, on the 7/1 is the offence 2003 Theft Act again, robbery contrary to section 14, a sentence of seven years, period suspended of two years from the 4/9/2003 and bound to the peace for two years, Judge. Cork City Circuit Court again 19/8 is the offence, 2003, carrying a firearm with intent to, contrary to section 27B of the Firearms Act 1964, Judge. And there's a sentence of three years from the 4/9/2003. Also on the same date is a robbery, Judge contrary to section

14 of the Theft Act 2001, a sentence of seven years and a period suspended of two years suspended sentence on that 4/9/2003, bound to the peace for two years, Judge. Cork City court No. 1, 7/1/2003, failing to appear on another remand date sentence, a seven day sentence on that one, Judge. Cork City again, court No. 1 District Court, 6/1/2003 offence, Theft Act 2001, section 4, sentenced to eight months from the 17/9/2003. Cork City Circuit Court, Judge, on the 11/6 is the offence 1999, Douglas indictable offence sentence concurrent, it's assault with a robbery, imitation firearm, Judge, and that was a sentence of eight years. On the 20/6/1995, Judge, it's assault, some sort of assault, Judge, a sentence of two years. On the 10/2/1993, Judge, again it's robbery with a firearm, possession of firearms, sentenced to 10 years, Judge. On the 7/12/1992, Judge, Anglesea Street indictable offence it's a burglary, burglary and larceny, Judge, sentenced to one year and 11 months. On the 14/3/1989, Judge, it's burglary in Patrickswell, sentenced to two years at Limerick City. Judge, on the 16/2/1989 is burglary again, sentenced to 11 months at Limerick City. On the 12/2/1988, Judge, it's aggravated burglary sentenced to five years at Limerick City Circuit Court, Judge. On the 5/11/1987, Judge, it's a burglary, one year imprisonment, burglary 10 months consecutive and a burglary taken into consideration and it's down as a one year and 10-month sentence in Newport sitting at Merchant's Quay, Judge. Back in 1987, 2/11/1987 is Mayfield charge sheet, it's a burglary and steal, consecutive sentence, sentenced to six months, Judge, at Cork City District Court No. 1. 1987, 20/10/1987, trespass and larceny, sentenced to 10 months, Judge, at Limerick City. And 18/6/1987 is Lusk indictable offence, section 51 of the Malicious Damage Act, Judge, sentenced to one year at District Court in Balbriggan, Judge. On the 24/11/1986 in Mayfield, common burglary with larceny, sentenced to two years at Cork City No. 1 court. And the last one, Judge, the 13/10/1986, Mayfield indictable, burglary and steal with larceny, forgery. Judge, sentenced to two years at Cork City No. 1.”

13. The appellant was born on the 14th of December 1970, and it will be seen that the first conviction was on the 13th of October 1986. The most recent were those resulting from the 2013 trial. It can be seen accordingly that the appellant, until he entered custody for the rape and related offences, was almost continuously involved in serious criminality. The convictions speak for themselves, but we note that the majority of them were dealt with on indictment and that they include a number of offences of violence. We will not repeat what is quoted above but it will be seen that in 2003 he was convicted of robbery and a sentence of 7 years (a portion of which was suspended) was imposed. On that date he was also sentenced for offences of carrying a firearm with intent—one infers that that offence was committed as part of the robbery. We note that earlier again on the 11th of June 1999 a sentence of 8 years’ imprisonment was imposed described as “assault with robbery, imitation firearm”. The latter is difficult to reconcile with the 2003 sentences because of the periods involved but suffice it to say that the offences attracted a lengthy sentence indicating the utmost seriousness. Earlier again, on the 10th of February 1993 a term of imprisonment of 10 years was imposed in respect of robbery with a firearm (as it is described), and on the 12th of February 1988 a sentence of 5 years was imposed in respect of an aggravated burglary. We mention these because they stand out for their seriousness.

The question of good character does not come into the case. There are no mitigating factors.

14. Counsel for the prosecution brought section 13 of the Criminal Law Act 1976 to the sentencing judge’s attention. That section provides that sentences for offences committed during a period of imprisonment shall be consecutive to the sentence being served by the prisoner—one could not doubt that this is a case warranting consecutive sentences apart from this factor.

15. Counsel for the accused was instructed by the appellant not to offer any plea in mitigation at the sentencing hearing and elected to give evidence himself. The appellant proceeded to make a statement to the Court; however, shortly after beginning his statement, the sentencing judge intervened to stop the appellant from providing this statement as she was concerned that he was attempting to use the statement as a mechanism to attack MG. The judge then requested to review the statement for the purpose of making a ruling on its admissibility. It appears from the transcript that there was a disturbance in the courtroom during which a book was thrown in the direction of the judge which resulted in the appellant being excluded from the courtroom for the duration of the sentencing hearing. Following an adjournment, the judge returned and summarised the content of the statement the appellant had intended to deliver in the following way:—

“The statement which the defendant wished to read out, I have read. It criticises the judicial process; it criticises this Court for the manner in which the trial proceeded.

It states that the defendant, Mr Murray, was subjected to a total abuse of laws that govern our State; that the legal system is turning a dangerous corner, a corner once protected by great legal minds, and that there is no longer any separation of power between the judiciary and the Oireachtas, the government and the judiciary. That's a summary of what's contained in the document, and the Chief Justice is asked to consider a transcript of the trial. That's -- in summary that's what's contained in it.”

16. The sentencing judge did not have the benefit of victim impact statements as each of the complainants had indicated that they were content for the Court to rely on the evidence that they provided during the trial in this respect. The sentencing judge summarised the impact of the offending on a number of the complainants, based on the evidence presented at trial, as follows:—

“And in respect to the impact on the victims, the Court heard during the course of the trial and the jury heard Mr McGinn described how the offending had been devastating to him. He did not take calls from unlisted numbers; he changed his routine, and he also referred to the impact on his family.

Ms Moeller described the behaviour as very upsetting, and the impact is very upsetting and embarrassing and she returned to the plethora of calls and the professional embarrassment of her phone being used.

And MG referred to many, many calls that she was a little bit terrified and there was evidence during the course of the trial of her husband trying to protect her from these calls.”

Although the effect of the offending on Mr McGillicuddy is not particularised by the judge, the impact is self-evident from what she said regarding the legal professionals collectively.

17. In identifying the aggravating factors of the offending the sentencing judge said, inter alia, the following:—

“In relation to the aggravating factors, with regard to MG, this Court cannot imagine a more egregious aggravating factor than a situation where the person who has been convicted of serious sexual offences, including rape, and other serious offences harasses the victim of those offences from prison when serving a sentence having been convicted by a jury for that offending. The impact on the victim is a further aggravating factor. The defendant has continued in his attempts to damage the reputation of the victim without a scintilla of foundation for his claims. His behaviour towards the victim has been premeditated and planned. With regard to the legal professionals, his behaviour was premeditated and planned to cause maximum distress and interference with peace and privacy. I regard the impact on the victims as a further aggravating factor, his level of planning and the fact that this offending was carried out from prison.”

She also had regard to the repulsive nature of the advertisements placed on the sex website and the fact that this was done, cynically, to visit unwanted and unsavoury attention upon those involved, the impact of the offending on the victims, the fact that they were targeted by the appellant due to their role in the trial of his offences, and his unwillingness to accept the verdict: she characterised his conduct as amounting to a “fundamental attack on our system of justice”. We agree with her when she stated: “… this can only be described as an unprecedented and deliberate abuse of process on the part of Mr Murray.”

Grounds of Appeal

18. The appellant had initially filed notice of his intention to appeal both against his convictions in respect of Counts Nos. 1–5 on the indictment and in respect of the severity of the sentences imposed in respect of these offences and, in the case of Count No. 6, severity of sentence. The sentences are appealed on the following ground:—

6. In all the circumstances the sentences imposed were excessive and the Learned Trial Judge erred in principle in imposing same.

Given what was rightly described by the judge as the egregious nature of these offences we cannot see how the individual sentences could be open to any criticism.

Submissions of the Parties

19. In his written submissions, counsel for the appellant articulated three discrete submissions in support of the ground of appeal that the sentencing judge erred in principle by:—

(1) failing to have adequate regard to the ‘totality principle’ when sentencing the appellant (the ‘totality issue’).

(2) not giving any, or any adequate, consideration to the principle of rehabilitation; and

(3) erroneously taking the conduct of the appellant during trial into consideration when sentencing.

At the hearing, however, the focus of the appeal was on the totality issue—the judge, it was said, erred in principle in failing to apply it either properly or at all, such that the sentence was disproportionate having regard to the total number of years to be served consecutive to that imposed in respect of the earlier offences. This proposition is rejected by the respondent. We will concentrate accordingly on the totality issue.

Discussion

20. Firstly, regarding the issue of the appellant’s conduct during the trial, notwithstanding the odious behaviour of the appellant during the trial, extending, also, to what was in effect an attack on the judge, the sentencing judge did not take this into account as an aggravating factor but, as she was entitled to do, she referred to it when summarising the facts of the matter.

21. Secondly, regarding the rehabilitation issue, there was no evidential basis upon which that might have been a mitigating factor, or one which would give rise to a suspended sentence on terms. So clear is the position that the judge did not have to elaborate upon it on the facts of this case.

22. There is no reality in the aforementioned submissions, and the real issue is whether or not the totality principle was properly applied the judge having arrived at the post-mitigation sentences.

23. We need hardly restate the principle that having identified the post-mitigation sentences in the ordinary course, and in a case of the present kind there could be no doubt but that those sentences are in each case correct for the reasons she elaborated, a judge who imposes a consecutive sentence or sentences must stand back so to speak and consider whether or not, taking the matter in the round, the cumulative term of imprisonment (and this issue arises only in respect of multiple consecutive sentences) is proportionate to the wrongdoing (‘the totality principle’). The judge had regard to this principle of sentencing and no doubt for that reason made the sentences imposed on Counts Nos. 2, 3, 4 and 6 concurrent to those imposed on Count No. 1.

24. The judge does not expressly articulate the fact that she paused and stood back, so to speak, looking at the matter in the round having regard to the cumulative sentence; the sentencing process is not mechanical, and judgments are not formulaic in the sense that express reference to this process is not necessary. Here, we are satisfied, not least from looking at the outcome itself, that the judge must have considered the issue; she said that:

“… Having considered all of these matters I am satisfied this is a proportionate sentence.

It reflects the moral culpability on the part of Mr Murray.” The reason for the existence of the totality principle is to ensure that the sentence is proportionate, and the judge referred to proportionality in the judgment. There has accordingly been no failure to apply the principles thereof correctly.

25. There are numerous aggravating factors and no mitigating factors. Each of these offences are at the highest level of gravity given the factors manifest from the evidence and identified by the judge. In each case on a free-standing basis the maximum penalty would be justified—this must be subject to the totality principle in the case of consecutive sentences so that proportionality is achieved. The re-victimisation of MG, the attack on the lawyers involved in the first case (constituting, as it does, an attack on the administration of justice), the moral turpitude of the appellant shown, inter alia, by his attitude to the offending when interviewed and towards MG when seeking to give evidence at the sentence hearing, his appalling criminal record, the absence of mitigation and the effects on the victims are striking features of the case (the list is not exhaustive) justify the sentence.

26. As a matter of law, pursuant to section 13 of the Criminal Law Act 1976, it was necessary for any sentence imposed on the appellant to be consecutive, especially in the context of this case. Irrespective of the requirements of that provision, this was a case where it was necessary, given the nature of the offending behaviour, to consider the imposition of consecutive sentences on each count.

27. The punishment here is condign but proportionate. We accordingly dismiss this appeal.